South Africa’s threat to arrest its own citizens who serve in the Israel Defense Forces is raising legal, moral and strategic questions for a military that relies heavily on foreign-born troops to fill its ranks.
What effect will the decision have on IDF readiness amid the Israel-Hamas war? Could South Africa’s move create a chilling effect that would dissuade people from taking the risk of serving? And what about dual nationals, who have no choice under Israeli law but to complete mandatory military service?
Although no other nations have said they’ll follow South Africa’s lead and prosecute their own citizens, campaigns are underway to push several other governments to do the same — most notably in France. Proponents cite allegations of war crimes leveled against Israel by the U.N. and others.
The growing questions about legal consequences for IDF troops who hold other citizenship were kicked up this week by South African Foreign Minister Naledi Pandor, whose government has accused Israel of genocide in the International Court of Justice. In a speech at a summit on Palestinian solidarity, Pandor said she was putting South Africans who fight in the IDF on notice.
“We are ready. When you come home, we are going to arrest you,” Pandor said as vigorous applause rang out.
Israel invaded the Gaza Strip after Hamas launched a terror attack on Oct. 7, killing more than 1,20o people and taking hundreds more hostage. During five months of war, Israeli forces have killed more than 31,000 in Gaza amid a humanitarian crisis so dire that the U.S. and aid agencies are rushing in food by airdrop and by sea.
In South Africa’s case, the government has threatened to prosecute citizens or strip their citizenship for merely joining the IDF, even if they’re not personally accused of any wrongdoing in the war. South Africa is citing local laws it says can impose consequences on South Africans who join foreign militaries without South Africa’s permission or fight in wars the nation disagrees with.
But Peter Spiro, who teaches international law at the Temple University Beasley School of Law, said governments would be hard-pressed to apply “collective guilt” to individual citizens for specific, alleged crimes committed by the IDF.
“They couldn’t just say, ‘The IDF is engaging in war crimes, so you are guilty of a war crime,’” said Spiro, an expert on dual citizenship. “They could say, ‘You participated in the following episode that involved war crimes.’”
It’s unclear exactly how many foreign nationals are serving in the Israel-Hamas war. The IDF didn’t respond to questions about those figures or concerns that other nations might follow South Africa’s example.
Dual nationals make up a sizable share of society in Israel. Many children of foreign-born Israelis also receive second citizenship through their parents.
And Israel’s military has numerous programs to recruit foreigners to serve in the IDF, including in the “Mahal” volunteer program for Jewish people and as “lone soldiers,” who have no other family in Israel. The nonprofit Lone Soldier Center says there are more than 7,000 of them, with 18% from the U.S. and 14% from former Soviet Union states.
LeRoi Taljaard, a 24-year-old from the Johannesburg area, immigrated to Israel with his family from South Africa as a teenager and completed his mandatory military service as an IDF paratrooper. Now a reservist, he was called back into service when the war started and now faces the prospect of never being able to return to South Africa, he said.
These days, his Instagram posts are filled with acerbic comments from strangers saying, “Straight to jail as soon as you land” and “come home, we dare you.”
“It’s extremely difficult,” Taljaard said in a phone interview from Israel, where he’s spent much of the last four months fighting in the Gaza Strip. “But on the other side, you need to understand what your values are, and what you stand for.”
In South Africa’s case, the warning comes ahead of elections in May, in which the ruling African National Congress is under huge pressure over rampant unemployment, high rates of violence and crumbling infrastructure. Critics have accused the government of stoking hostility toward Israel as a distraction from its own domestic failures.
“They’re statements before an election to try and get more votes for a government party,” said Dorron Kline, CEO of Telfed, a pro-Israel group that supports South Africans immigrating to Israel.
South Africa has been among the fiercest critics of Israel and the war in Gaza, with top leaders often comparing Israel’s occupation of Palestinian territories to South Africa’s former apartheid regime of racial discrimination.
Still, there are signs that other nations are grappling with whether participation by their citizens in the war can or should be criminalized.
In France, lawmaker Thomas Portes has said 4,000 French citizens are fighting in Israel’s military in the war in Gaza. In a December letter, he demanded that France’s justice minister investigate and prosecute them, although there are no indications France’s government plans to take that step.
The United Kingdom, facing questions about whether its citizens could legally serve in the IDF, published written guidance saying the U.K. “recognizes the right of British nationals with additional nationalities” to serve in those countries “legitimately recognized armed forces,” including the IDF.
In the U.S., where the Biden administration has said it will never withhold support for Israel in its war with Hamas, any efforts to punish Americans serving in the IDF are highly unlikely.
Americans who serve in foreign militaries can lose their U.S. citizenship under specific circumstances, such as if that military is engaged in “hostilities” with the U.S. But experts on U.S. citizenship law say there are no recent examples of that being carried out.
Pnina Sharvit-Baruch, a colonel in Israel’s reserves and former head of the IDF’s international law department, said she didn’t expect any short-term, significant effect on IDF readiness.
“People who are serving in the IDF … are coming here to defend the country in our most precarious security situation since our existence,” said Sharvit-Baruch, now a senior researcher at Tel Aviv’s Institute for National Security Studies. “I don’t think these considerations will play a major role in the consideration of specific people to whether to join the IDF.”